The Problem with Words: Plain Language and Public Participation in Rulemaking
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The Problem with Words: Plain Language
and Public Participation
in Rulemaking
Cynthia R. Farina,* Mary J. Newhart,** and Cheryl Blake***
ABSTRACT
This Article, part of the special issue commemorating the fiftieth anniver-
sary of the Administrative Conference of the United States (ACUS), situates
ACUS's recommendations for improving public rulemaking participation in
the context of the federal plain language movement. The connection be-
tween broader, better public participation and more comprehensible rulemak-
ing materials seems obvious, and ACUS recommendations have recognized
this connection for almost half a century. Remarkably, though, the series of
presidential and statutory plain-language directives on this topic have not even
mentioned the relationship of comprehensibility to participation until very re-
cently. In 2012, the Office of Information and Regulatory Affairs (OIRA)
issued Executive Summary Guidance, instructing that straightforward ex-
ecutive summaries be included in lengthy or complex rules. OIRA rea-
soned that [p]ublic participation cannot occur ... if members of the public
are unable to obtain a clear sense of the content of [regulatory] requirements.
Using a novel dataset of proposed and final rule documents from 2010
through 2014, this Article examines the effect of the executive summary re-
quirement. The results show that the use of executive summaries increased
substantially compared with the modest executive-summary practice pre-Gui-
dance. Additionally, agencies have done fairly well in providing summaries
for lengthy rules. Success in providing the summary in complex rules,
and in following the standard template recommended by the Guidance is
mixed. The most significant finding is the stunning failure of the new execu-
tive summary requirement to produce more comprehensible rulemaking infor-
mation. Standard readability measures place the executive summaries at a
level of difficulty that would challenge even college graduates. Moreover, ex-
ecutive summaries are, on average, even less readable than the remainder of
the rule preambles that they are supposed to make more accessible to a
broader audience.
* William G. McRoberts Research Professor in Administration of the Law, Cornell Law
School; Senior Researcher, Cornell eRulemaking Initiative (CeRI). Special thanks go to: Gi-
ancarlo Lee, Dr. Veronica Maidel, and Andrew Lai for their work obtaining the data and statisti-
cal analyses; Cornell Law research librarians Matthew M. Morrison and Margaret Ambrose, who
unearthed key bits of the history recounted in Part I; and David Pritzker, Deputy General Coun-
sel of ACUS, for sharing his encyclopedic knowledge of ACUS and the results of his persistent
digging into its past.
** Adjunct Professor of Law, Cornell Law School; CeRI Executive Director and Senior
Researcher.
*** CeRI e-Government Fellow, Cornell J.D. 2013.
September 2015 Vol. 83 No. 4/5
1358](ViewImageLocal?handle=hein.journals/gwlr83&div=44&collection=&method=preview&ext=.png&size=3)
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The Problem with Words: Plain Language and Public Participation in Rulemaking
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